FIRST AMENDMENT
RELIGION AND EXPRESSION
FREEDOM OF EXPRESSION--SPEECH AND PRESS

This material is extracted from
Analysis and Interpretation:
Annotations of Cases Decided by the Supreme Court of the United States,
1992 edition, pages 1113-1118, with 1996 updates added.
The entire original document is available on the web
at http://www.access.gpo.gov/congress/senate/constitution/.

Governmental Regulation of Commercial Speech

As in the previous section, the governmental regulations here
considered may have only the most indirect relation to freedom of
expression, or may clearly implicate that freedom even though the
purpose of the particular regulation is not to reach the content of the
message. First, however, the judicially-formulated doctrine
distinguishing commercial expression from other forms is briefly
considered.

Commercial Speech.--In recent years, the Court's treatment of
``commercial speech'' has undergone a transformation, from total
nonprotection under the First Amendment to qualified protection. The
conclusion that expression proposing a commercial transaction is a
different order of speech was arrived at almost casually in
Valentine v. Chrestensen,1
in which the Court upheld a city ordinance
prohibiting distribution on the street of ``commercial and business
advertising matter,'' as applied to an exhibitor of a submarine who
distributed leaflets describing his submarine on one side and on the
other side protesting the city's refusal of certain docking facilities.
The doctrine was in any event limited to promotion of commercial
activities; the fact that expression was disseminated for profit or
through commercial channels did not expose it to any greater regulation
than if it were offered for free.2
The doctrine lasted in this form
for more than twenty years.

``Commercial speech,'' the Court has held, is protected ``from
unwarranted governmental regulation,'' although its nature makes such
communication subject to greater limitations than can be imposed on
expression not solely related to the economic interests of the speaker
and its audience.3 Overturning of this exception in free expression
doctrine was accomplished within a brief span of time in which the
Justices haltingly but then decisively moved to a new position.
Reasserting the doctrine at first in a narrow five-to-four decision, the
Court sustained the application of a city's ban on employment
discrimination to bar sex-designated employment advertising in a
newspaper.4 Granting that speech does not lose its constitutional
protection simply because it appears in a commercial context, Justice
Powell, for the Court, found the placing of want-ads in newspapers to be
``classic examples of commercial speech,'' devoid of expressions of
opinions with respect to issues of social policy; the ad ``did no more
than propose a commercial transaction.'' But the Justice also noted that
employment discrimination, which was facilitated by the advertisements,
was itself illegal.5

Next, the Court overturned a conviction under a state statute
making it illegal, by sale or circulation of any publication, to
encourage or prompt the obtaining of an abortion, as applied to an
editor of a weekly newspaper who published an advertisement announcing
the availability of legal and safe abortions in another State and
detailing the assistance that would be provided state residents in going
to and obtaining abortions in the other State.6 The Court discerned
that the advertisements conveyed information of other than a purely
commercial nature, that they related to services that were legal in the
other jurisdiction, and that the State could not prevent its residents
from obtaining abortions in the other State or punish them for doing so.

Then, all these distinctions were swept away as the Court voided
a statute declaring it unprofessional conduct for a licensed pharmacist
to advertise the prices of prescription drugs.7 Accepting a suit
brought by consumers to protect their right to receive information, the
Court held that speech that does no more than propose a commercial
transaction is nonetheless of such social value as to be entitled to
protection. Consumers' interests in receiving factual information about
prices may even be of greater value than political debate, but in any
event price competition and access to information about it is in the
public interest. State interests asserted in support of the ban,
protection of professionalism and the quality of prescription goods,
were found either badly served or not served by the statute.8

Turning from the interests of consumers to receive information
to the asserted right of advertisers to communicate, the Court voided
several restrictions. The Court voided a municipal ordinance which
barred the display of ``For sale'' and ``Sold'' signs on residential
lawns, purportedly so as to limit ``white flight'' resulting from a
``fear psychology'' that developed among white residents following sale
of homes to nonwhites. The right of owners to communicate their
intention to sell a commodity and the right of potential buyers to
receive the message was protected, the Court determined; the community
interest could have been achieved by less restrictive means and in any
event could not be achieved by restricting the free flow of truthful
information.9 Similarly, deciding a question it had reserved in the
Virginia Pharmacy case, the Court held that a State could not forbid
lawyers from advertising the prices they
charged for the performance of routine legal services.10
None of the
proffered state justifications for the ban was deemed sufficient to
overcome the private and societal interest in the free exchange of this
form of speech.11 Nor may a state categorically prohibit attorney
advertising through mailings that target persons known to face
particular legal problems,12
or prohibit an attorney from holding
himself out as a certified civil trial specialist13,
or prohibit a certified public accountant from
holding herself out as a certified financial planner.28
However, a State
has been held to have a much greater countervailing interest in
regulating person-to-person solicitation of clients by attorneys;
therefore, especially since in-person solicitation is ``a business
transaction in which speech is an essential but subordinate component,''
the state interest need only be important rather than compelling.14

The Court later refused, however, to extend this
principle to in-person solicitation by certified public
accountants, explaining that CPAs, unlike attorneys, are not
professionally ``trained in the art of persuasion,'' and
that the typical business executive client of a CPA is ``far
less susceptible to manipulation'' than was the accident
victim in Ohralik.29 To allow enforcement of such a broad
prophylactic rule absent identification of a serious problem
such as ambulance chasing, the Court explained, would dilute
commercial speech protection ``almost to nothing.''30

Moreover, a statute prohibiting the practice of optometry under
a trade name was sustained because there was ``a significant
possibility'' that the public might be misled through deceptive
utilization of the same or similar trade names.15 But a state
regulatory commission prohibition of utility advertisements ``intended
to stimulate the purchase of utility services'' was held unjustified by
the asserted interests in energy consumption and avoidance of
subsidization of additional energy costs by all consumers.16

While commercial speech is entitled to First Amendment
protection, the Court has clearly held that it is not wholly
undifferentiable from other forms of expression; it has remarked on the
commonsense differences between speech that does no more
than propose a commercial transaction and other varieties.17
The Court has developed a four-pronged test to
measure the validity of restraints upon commercial
expression.

Under the first prong of the test as originally formulated,
certain commercial speech is not entitled to protection; the
informational function of advertising is the First Amendment concern and
if it does not accurately inform the public about lawful activity, it
can be suppressed.18

Second, if the speech is protected, the interest of the
government in regulating and limiting it must be assessed. The State
must assert a substantial interest to be achieved by restrictions on
commercial speech.19

Third, the restriction cannot be sustained if it provides only
ineffective or remote support for the asserted purpose.20

Instead, the regulation must ``directly advance''
the governmental interest. The Court resolves this issue
with reference to aggregate effects, and does not limit its consideration to
effects on the challenging litigant.31

Fourth, if the governmental interest could be served as well by
a more limited restriction on commercial speech, the excessive
restriction cannot survive.21
The Court has rejected the idea that a
``least restrictive means'' test is required. Instead, what is now
required is a ``reasonable fit'' between means and ends, with the means
``narrowly tailored to achieve the desired objective.''22

The ``reasonable fit'' standard has some teeth, the Court made clear
in City of Cincinnati v. Discovery Network, Inc.,32 striking down a
city's prohibition on distribution of ``commercial handbills'' through
freestanding newsracks located on city property. The city's aesthetic
interest in reducing visual clutter was furthered by reducing the
total number of newsracks, but the distinction between prohibited
``commercial'' publications and permitted ``newspapers'' bore ``no
relationship whatsoever'' to this legitimate interest.33 The city
could not, the Court ruled, single out commercial speech to bear the
full onus when ``all newsracks, regardless of whether they contain
commercial or noncommercial publications, are equally at fault.''34
On the other hand, the Court upheld a federal law that prohibited
broadcast of lottery advertisements by a broadcaster in a state that
prohibits lotteries, while allowing broadcast of such ads by stations
in states that sponsor lotteries. There was a ``reasonable fit''
between the restriction and the asserted federal interest in
supporting state anti-gambling policies without unduly interfering
with policies of neighboring states that promote lotteries.35 The
prohibition ``directly served'' the congressional interest, and could
be applied to a broadcaster whose principal audience was in an
adjoining lottery state, and who sought to run ads for that state's
lottery.36

In a 1986 decision the Court asserted that ``the greater power to
completely ban casino gambling necessarily includes the lesser power
to ban advertising of casino gambling.''37 Subsequently, however,
the Court has eschewed reliance on Posadas,38 and it seems doubtful
that the Court would again embrace the broad principle that government
may ban all advertising of an activity that it permits but has power
to prohibit. Indeed, the Court's very holding in 44 Liquormart,
Inc. v. Rhode Island,39 striking down the State's ban on
advertisements that provide truthful information about liquor prices,
is inconsistent with the general proposition. A Court plurality in 44
Liquormart squarely rejected Posadas, calling it ``erroneous,''
declining to give force to its ``highly deferential approach,'' and
proclaiming that a state ``does not have the broad discretion to
suppress truthful, nonmisleading information for paternalistic
purposes that the Posadas majority was willing to tolerate.''40
Four other Justices concluded that Posadas was inconsistent with the
``closer look'' that the Court has since required in applying the
principles of Central Hudson.41

The ``different degree of protection'' accorded commercial speech has
a number of consequences. Somewhat broader times, places, and manner
regulations are to be tolerated.42 The rule against prior
restraints may be inapplicable,43 and disseminators of commercial
speech are not protected by the overbreadth doctrine.44

Different degrees of protection may also be discerned among different
categories of commercial speech. The first prong of the Central
Hudson test means that false, deceptive, or misleading advertisements
need not be permitted; government may require that a commercial
message appear in such a form, or include such additional information,
warnings, and disclaimers, as are necessary to prevent deception.45
But even truthful, non-misleading commercial speech may be regulated,
and the validity of such regulation is tested by application of the
remaining prongs of the Central Hudson test. The test itself does not
make further distinctions based on the content of the commercial
message or the nature of the governmental interest (that interest need
only be ``substantial''). Recent decisions suggest, however, that
further distinctions may exist. Measures aimed at preserving ``a fair
bargaining process'' between consumer and advertiser46 may be more
likely to pass the test47 than regulations designed to implement
general health, safety, or moral concerns.48 As the governmental
interest becomes further removed from protecting a fair bargaining
process, it may become more difficult to establish the absence of less
burdensome regulatory alternatives and the presence of a ``reasonable
fit'' between the commercial speech restriction and the governmental
interest.49